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Saturday, December 24, 2011

Michael Alan Roth, the former La Paz County Precinct Chair has been vindicated by the appellate court. Total cost to the taxpayers for the adjudication through appeal is unknown. The decision overturning Roth's conviction for "disorderly conduct" at town hall is reprinted below, from:

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

SWANN, Judge.

¶ 1 Michael Alan Roth appeals his convictions and sentences on two counts of disorderly conduct, both class one misdemeanors, on the grounds of insufficiency of evidence and violation of his First Amendment rights. We find that the evidence was insufficient to support the convictions and therefore vacate the convictions and sentences.

¶ 2 On April 13, 2010, Roth attended a public meeting while the Quartzsite Town Council (the "Council") met in executive session. While the Council met in a separate room, Roth and other citizens gathered for the Council's return for a "call to the public." While waiting, Roth called the planning and zoning director an "asshole," causing the city official to feel "threatened," and prompting him to ask Quartszite Police Chief Gilbert to "come over . . . and handle the situation." This did not disrupt the executive session.

¶ 3 Roth later addressed the crowd and made disparaging remarks about Gilbert — these remarks caused a few other audience members to be upset and defensive toward Roth and caused the atmosphere to become "tense" and "hostile." Roth's statements "[got] the crowd worked up," caused a "commotion," and were "disruptive."2 Given the circumstances, the officer became concerned for Roth's safety.

¶ 4 Roth's remarks caused the crowd to become "quite agitated," with "multiple conversations going on . . . within the room," making it difficult for Gilbert to anticipate where problems might arise, specifically problems with "some type of physical retaliation." Gilbert considered Roth's behavior "seriously disruptive . . . because of the comments . . . and the antagonistic behavior . . . was inciting . . . the crowd."

¶ 5 Gilbert told Roth to leave3 after another audience member stood and "angrily" gestured at Roth while suggesting that Roth could leave if he did not like it "here." At this point, Gilbert felt the situation "had just gotten totally out of hand," had become "explosive . . . in the reactions of other people," such that he was concerned about the potential for violence. Roth then sat down and when he refused to leave, he was arrested. Roth's behavior did not stop the meeting and the meeting continued after the Council's executive session.

¶ 6 Roth was indicted on one count of resisting arrest, a class six felony, and two counts of disorderly conduct, both class one misdemeanors, following the April 13 arrest. At the subsequent jury trial, in addition to testimony from Gilbert and others, the state showed two videotapes — with sound — that depicted portions of Roth's conduct at the meeting; one video was recorded by a camera pinned to a police officer's lapel, and the second by another audience member. The lapel video demonstrates that Roth was initially sitting next to Gilbert, who was standing, and shows Roth insulting and badgering Gilbert with questions about his job history. This video also shows Roth briefly arguing with other audience members and periodically chiming in on an argument that one of his political allies was having with another audience member over the town's budget deficit, expenditures, and handling of stray animals.

¶ 7 The audio also evidences an audience member's threat to step outside and "knock the shit" out of Roth because he suggested that the involved officials had "pea brains." Roth asked Gilbert to evict the audience member from the meeting, and berated and baited Gilbert when he refused. Instead, Gilbert ordered Roth's political ally to leave, which she did. The dull murmur of conversations among audience members can be heard in the background throughout this period.

¶ 8 The videotapes later depict Roth standing next to Gilbert at the podium, addressing the audience of about twenty, telling them that police officers had come to him and told him that they did not respect Gilbert. Roth's tone was sarcastic and his demeanor was somewhat aggressive, but he paused while other audience members spoke and used gestures only to emphasize, or to point. Roth's remarks prompted several members of the audience to defend Gilbert, some to laugh. Gilbert then approached Roth and told him he would have to leave — Roth told Gilbert he would sit down instead and did so, but Gilbert placed him under arrest.

¶ 9 Following the close of the state's evidence, the trial court denied Roth's motion for judgment of acquittal on all charges, but ruled that the initial incident during which Roth called the city official an "asshole" could not be used as evidence to support either disorderly conduct charge, because the city official had testified that this incident did not disrupt the meeting. The judge also denied Roth an instruction on "fighting words," reasoning that the state had not charged Roth under A.R.S § 13-2904(A)(3) for "us[ing] abusive or offensive language," but rather, with conduct that "went beyond his normal freedom of speech . . . and took things a level above that and created some seriously disruptive behavior . . . made a protracted commotion . . . it has nothing to do with fighting words." The judge instructed the jury instead that:

Although the Constitution provides the right of freedom of speech and expression, restrictions can be made on the time, place, and manner of the speech or expression. If the speech or expression is basically incompatible with the normal activity of a particular place at a particular time, then it is not protected under the Constitution.

¶ 10 The jury was unable to reach a verdict on Count One, resisting arrest, but found Roth guilty of Counts Two and Three. The judge subsequently dismissed the charge of resisting arrest without prejudice, suspended sentence, and placed Roth on one year of unsupervised probation on the disorderly conduct convictions, to be served concurrently. The judge refused the state's request that he impose a condition prohibiting Roth from attending any Quartzsite Town Council meetings or functions during the period of his probation.4

¶ 11 Roth timely appeals his convictions and sentences on Counts Two and Three. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031 and 13-4033(A)(1).

DISCUSSION

¶ 12 On appeal, Roth does not challenge the constitutionality of either subsection of the disorderly conduct statute under which he was charged; he challenges only the sufficiency of the evidence to support their constitutional application to his conduct. He argues that the jury convicted him for disorderly conduct based solely on evidence of his exercise of his right to speak on purely political issues and that the evidence failed to demonstrate that he had the necessary mens rea, that his conduct constituted "seriously disruptive behavior," or that he intended to prevent the transaction of any "business" being conducted.

I. CONSTITUTIONALITY

¶ 13 We review de novo whether a statute is constitutional as applied. State ex rel. Napolitano v. Gravano,204 Ariz. 106, 110, ¶ 11, 60 P.3d 246, 250 (App. 2002) (citation omitted). The right to free speech is protected by the First and Fourteenth Amendments to the United States Constitution. U.S. Const. amend. I, XIV. "The Fourteenth Amendment does not permit the State to make criminal the peaceful expression of unpopular views." Edwards v. South Carolina,372 U.S. 229, 237 (1963). Speech may in fact "best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." Terminiello v. Chicago,337 U.S. 1, 4 (1949). See Brown v. Louisiana,383 U.S. 131, 133, n.1 (1966) (noting that participants in a peaceful demonstration may not be charged with the danger posed by the potential that their critics might react with violence, referring to the "heckler's veto").

¶ 14 The right to free speech, however, is not absolute, and does not protect, among other things, "`fighting words' — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace," Chaplinsky v. New Hampshire,315 U.S. 568, 571-72 (1942), words directed to, or likely to, incite "imminent lawless action," Brandenburg v. Ohio,395 U.S. 444, 447-49 (1969), or "incitement to riot," Feiner v. New York,340 U.S. 315, 321 (1951). The government may also, consistent with the First Amendment, impose reasonable restrictions on the time, place, and manner of protected speech in a public forum, so long as the restrictions are content-neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels for communication. Ward v. Rock Against Racism,491 U.S. 781, 791 (1989) (citations omitted).

¶ 15 However, we generally do not reach constitutional issues if the case can be decided on other grounds. Petolicchio v. Santa Cruz Cnty. Fair & Rodeo Ass'n, Inc.,177 Ariz. 256, 259, 866 P.2d 1342, 1345 (1994). Because this case can be decided on sufficiency of the evidence, as discussed below, we need not and do not reach the constitutional issues Roth raises.

II. SUFFICIENCY OF THE EVIDENCE

¶ 16 We review de novo the trial court's denial of a Rule 20 motion and the sufficiency of the evidence to support a conviction. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). A judgment of acquittal is appropriate only "if there is no substantial evidence to warrant a conviction." Ariz. R. Crim. P. 20(a). "Substantial evidence is more than a mere scintilla and is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Landrigan,176 Ariz. 1, 4, 859 P.2d 111, 114 (1993) (internal quotations omitted) (citation omitted). In reviewing the sufficiency of evidence, we view the facts in the light most favorable to upholding the jury's verdict, and resolve all conflicts in the evidence against defendant. State v. Girdler,138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983). "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong,187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (citation omitted).

A. Count Two

¶ 17 A.R.S. § 13-2904(A)(1) prohibits a person from engaging in "fighting, violent or seriously disruptive behavior" with the intent to disturb the peace or knowledge that he is doing so. Our supreme court has construed the term "`seriously disruptive behavior' to be of the same general nature as fighting or violence or conduct liable to provoke that response in others and thus to threaten the continuation of some event, function, or activity." In re Julio L.,197 Ariz. 1, 4, ¶ 11, 3 P.3d 383, 386 (2000).5 In this case, as in In re Julio L., the state failed to present any evidence that Roth's conduct seriously disrupted any event, function or activity. See id. at 4-5, ¶¶ 12-18, 3 P.3d at 386-87; see also In re Louise C.,197 Ariz. 84, 86, ¶ 10, 3 P.3d 1004, 1006 (App. 1999) (vacating conviction under § 13-2904(A)(1) because "[j]uvenile's language was not accompanied by anything that can reasonably be said to have been seriously disruptive of school activities.").

¶ 18 While Roth waited with other members of the public, the Quartzsite Town Council was in executive session and the state presented no evidence that Roth's conduct "seriously disrupted" the executive session. Instead, the state focused on the effect of Roth's conduct on the rest of the public in the meeting room. Other conversations can be heard continuously in the background during most of Roth's remarks, and it was only when Roth spoke to the audience briefly next to the podium where Gilbert stood that all attention appeared focused on him. Even then, his remarks prompted only laughter and criticism from the audience — with the exception of one incident of angry finger-pointing.

¶ 19 The only evidence the state offered to show that Roth's conduct "seriously disrupted" the activity of the waiting public was testimony from Gilbert and his officer that they felt Roth's conduct was "seriously disruptive,"6 and that they were concerned that Roth's antagonistic remarks would cause a member of the audience to retaliate physically. Gilbert testified that he believed that Roth's remarks disparaging him had caused the mood in the room to become "explosive" when an angry audience member pointed at Roth and suggested he could leave town if he was unhappy there. No violence erupted, however, and by Gilbert's own testimony, he was concerned only about the possibility of, or "potential" for, physical retaliation by an audience member inflamed by Roth's message. Moreover, although Roth's remarks to the audience immediately before he was arrested may have been antagonistic and annoying, he spoke in a normal voice and stopped speaking to listen as members of the audience responded.

¶ 20 The finger-pointing incident that Gilbert identified as crossing the line and provoking Roth's arrest, to any extent that Roth can be charged with it, hardly rose to the level of probable violence. See In re Julio L., 197 Ariz. at 3, ¶ 11, 3 P.3d at 385. The evidence accordingly failed to demonstrate that Roth's conduct, any more than any other person's conduct, "seriously disrupted" the public activities of waiting for the Council to return from executive session and discussing town politics. Gilbert testified that Roth's behavior did not stop any meeting — the "meeting" resumed when the council members returned from executive session.

¶ 21 Ultimately, the evidence failed to demonstrate that Roth's conduct was of the same general nature as violence or fighting, or was likely to provoke that reaction in others, or that it threatened "the continuation of some event, function, or activity," as necessary to show that it was "seriously disruptive." See id. We accordingly find that the evidence was insufficient to support Roth's conviction for disorderly conduct under A.R.S. § 13-2904(A)(1).

B. Count Three

¶ 22 For similar reasons as those discussed above, we find the evidence insufficient to support Roth's conviction under subsection (A)(4). Section 13-2904(A)(4) prohibits a person from "mak[ing] any protracted commotion, utterance, or display with the intent to prevent the transaction of the business of a lawful meeting, gathering or procession" with intent to disturb the peace or knowledge that he was doing so. Although the state may prove intent solely by circumstantial evidence, it may not rely solely on "speculation concerning possibilities." State v. Garcia, 227 Ariz. 377, 379, ¶ 9, 258 P.3d 195, 197 (App. 2011) (internal quotations omitted) (citations omitted).

¶ 23 The state argues that Roth's "intent to prevent the transaction of the business of a lawful meeting" could reasonably be inferred from the prolonged commotion he made before the Council returned from its executive session. We disagree.

¶ 24 Even if the evidence demonstrated that Roth engaged in a "protracted commotion, utterance, or display," the evidence failed to demonstrate that, in doing so, he intended to prevent the Council from continuing "the business of a lawful meeting" once it returned from its executive session. We also cannot agree with the state that the jury could have reasonably inferred Roth's intention to prevent the Council from resuming its business once it returned from executive session from Roth's conduct in addressing the crowd during the recess. The state's argument, rather, relies on "speculation concerning possibilities," which cannot support a conviction. Any "protracted commotion" caused by Roth occurred while the Council was in executive session, not during its conduct of public business. We accordingly find that the evidence was insufficient to support a conviction under subsection (A)(4).

CONCLUSION

¶ 25 For the foregoing reasons, we find the evidence was insufficient to support the convictions and vacate the judgments of conviction and the sentences accordingly.

Footnotes

1. We view the facts in the light most favorable to sustaining the convictions. State v. Haight-Gyuro, 218 Ariz. 356, 357, ¶ 2, 186 P.3d 33, 34 (App. 2008). Accordingly, we recite the facts in that light, though a review of the video recording of the incident could lead a reasonable fact finder to a different perception of the relevant facts.

2. An officer present for the meeting explained that Roth was2 "disruptive" because his "demeanor was very offensive" because "[h]e was talking about [the police chief]. He was offending the board. He was offensive in words he would say to members of the public."

3. Gilbert testified that he previously told Roth to "remain orderly" because of the ongoing Council meeting and that he also advised the entire crowd that anyone who was not orderly would be asked to leave and escorted out if the request to leave was refused.

Thursday, December 22, 2011

Jennifer "Jade " Jones, a candidate for Quartzsite Town Council and publisher of the Desert Freedom Press says a local group who investigates council members and staff found inappropriate content online, which they believe was produced by Martin Brannan, the Quartzite Town Attorney and Prosecutor.

"There's such extreme hateful and non- facts, I thought to myself this appears to be the signs of someone who is very disturbed and that's why I contacted the FBI," says Jones.

Jones says Brannan committed cyber bullying aimed at her and other entities using facebook, twitter, thinkatheist.com, and other sites.

She even believes he designed slanderous and threatening T-shirts using the site Cafepress.com.

"One T-shirt or design said QPOQ meaning Quartzite Police Officers Association and stamped over the top was the letters DOA (dead on arrival), and that appears to be a death threat," says Jones.

News 13 spoke with Martin Brannan and he says he did follow some blogs online and says he may have been the root of some ideas and things said by other people but feels he did not violate the law and says he did not design the T-shirts.

"The web site is called Quartzite Baggers, it's a wordpress thing I used to follow. I think there's nothing threatening, although it may be a little mean spirited," says Brannan.

Brannan says he has not been contacted by the FBI, but would not oppose an investigation because he says he is innocent.

After the interview with KSWT, Brannan wrote in a press release that he's a veteran of the first Gulf War and suffers from Post-Traumatic Stress Syndrome, but says he is not a threat to himself or anyone else.

"I ask that people look objectively at what's being alleged and actually decide for themselves if there is anything on the websites she should complain about that actually constitutes a threat. I'm sure everyone will see it's just silliness," says Brannan.

(Disclaimer- some highlighted links in the press release below may contain strong language and offensive material.)

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Press release from Jennifer "Jade" Jones:

FOR IMMEDIATE RELEASE:

When you go to current Quartzsite Town Attorney/Former La Paz and Apache County Attorney Martin Brannan's personal Internet page at thinkathiest.com, the link directing you to what he listed as his Twitter site "Idi Amin" - http://twitter.com/qsitebagger has recently been taken down.

The anti "QPOA" T shirts, and one featuring The Desert Freedom Press Publisher Jennifer Jones with a cartoon mad cow are available on an internet store called Cafe Press, where you can also buy merchandise with the La Paz County logo and another potential trademark infringement of the STP logo from "Quartzsite Town Attorney's Store" at: www.cafepress.ca/sk/qsitetownatty/100001

Evidence of Martin Brannan's connection to these websites was turned over to the FBI in Phoenix, the Major Crimes Division of DPS, and La Paz County Prosecutor Sam Vederman.

Brannan was hired by the Quartzsite Town Council last spring to replace Town Prosecutor Matt Newman. Newman was fired for refusing to pursue false charges against political targets and their known associates.

I was just notified by a reporter from KSWT television in Yuma that Jennifer Jones has issued a "press"release making generally silly accusations about her request that I be investigated by the FBI and the Arizona Department of Public Safety (DPS) for threatening her and others. Assuming that the FBI andDPS even find grounds to believe that there is criminal conduct requiring and investigation, which I highly doubt, I know that I have engaged in no illegal conduct. There is one accusation that Ms. Jones made which I do want to address, however, because I believe it is of great importance.

Ms. Jones alleged to the KSWT reporter that I am mentally unbalanced. I want to address this accusation in the hopes that it will help others who are stigmatized by such outrageous allegations.

I am a veteran of the first gulf war (1990-1991). I received an Air Medal for my role in piloting medium lift helicopters during combat operations in support of the 18th Airborne Corps. Shortly after returning from the conflict, I began having migraine headaches and experiencing difficulties which fall under the diagnostic heading of Post-Traumatic Stress Disorder (PTSD). I receive services from the Veteran's administration and have a service-connected disability for, along with several physical ailments, PTSD. I continue to suffer from occasional depression, anxiety and troubled sleep. I take medication for my condition which makes dealing with this disorder easier, but I do have symptoms and suffer from a condition designated by mental health professionals as a mental illness.

I admit this freely and without reservation because, like thousands of other Americans who have served this country against an armed enemy, I am not ashamed of the scars I earned ensuring that people like Jennifer Jones have the freedoms that Americans enjoy. While Ms. Jones uses her freedom of speech to ridicule people who bear the mental scars of combat like myself and Council Member Joe Winslow, she rails against anyone who dares to exercise their free-speech rights to ridicule her and her "service" to her fellow human beings.

The last US Combat troops have finally left Iraq and many more are still serving in Afghanistan. Some of them will soon be returning to the United States and to civilian life. Some of them may return to this community. All of them will have been impacted by their combat service. Some of them, like me, will have a service-connected disability as a result of their service. All of them, like me, will nevertheless be capable of really serving their communities both in spite of and, more importantly, because of the personal price they paid to secure your freedoms.

How you treat these brave men and women who suffer scars that you cannot see will be up to you. You can honor their service and their sacrifice and help them to adjust to civilian life.

You can also ridicule them and make scurrilous claims that they are mentally unstable like Ms.Jones does. Like Ms. Jones you can even claim that you are a "patriot" in doing so. That, too is your right; a right that these brave men and women and Joe Winslow and I all sacrificed a part of their own well-being to ensure.

AZ Attorney General says Quartzsite Town Council violated Open Meeting Law

Quartzsite, Arizona December 13, 2011 - In an eight-page letter to Quartzsite Town Attorney Martin Brannan, Arizona Attorney General Tom Horne outlined the violations that troubled his office.
"A couple of issues. One, the lady that was expelled," says Attorney General Horne about Jennifer Jade Jones' illegal dismissal from a public town council meeting on June 28. "She had come forward to address the board and turned her back and started addressing the audience...so [the town council members] were looking at her back. And I think they, you know, had a reasonable complaint that she shouldn't do that."
Attorney General Horne explains where the council went wrong.
"But they expelled her right away," said Horne. "The rule is if you're going to expel someone for disruptive behavior, you give them a warning first."
Jones expressed pleasure over the Attorney General's decision.
"I thought that was fascinating, especially since they did affirm that I was wrongfully removed from that meeting and that we were wrongfully denied access to the secret meeting," said Jones.
That secret meeting Jones referred to was the town council's closed-door meeting July 10th. Horne also says the council's failure to give proper public notice violated Arizona's Open Meeting Law.
"The remedies are some additional training," said Horne about the Quartzsite Town Council. "I'll be there to discuss our findings with their attorney...and then we'll monitor them for awhile."
However, Jones doesn't believe things will change in Quartzsite.
"I think the Council is going to laugh at getting a slap on the wrist," said Jones. "If you walk into any courtroom in the United States, they're going to tell you the ignorance of the law is no excuse. And the Attorney General's Office knows very well that this town council was trained by the League of Cities and Towns that it was videotaped and that was part of the evidence that they looked at. So the Council already had training. They were explicitly told not to do exactly hat they did. They did it anyway and they did it willfully."
Horne says Quartzsite's Open Meeting Law violations should send a strong message to those who serve the public in Arizona.
"People who serve on boards need to be well-educated on the Open Meeting Law and what they need to be doing," said Horne of the Quartzsite Town Council. "I think what was primarily the problem was not having sufficient education and so we're trying to correct that."

AG: Quartzsite violated meeting law

By Angela Piazza

Attorney General Tom Horne says his office has found evidence that the Quartzsite Town Council violated the state Open Meeting Law and failed to comply with posting requirements for notices and minutes.

On June 28, the council removed a resident from a public meeting in the western Arizona town for being disruptive without first issuing her a mandatory first warning notice, according to Horne.

On July 10, an emergency meeting was held at the Town Hall to discuss the disruption that occurred in the June 28 meeting. During the emergency meeting, the public was locked out of the meeting hall by the council. The council also failed to post meeting minutes on the town's website, Horne said.

Horne has recommended that the council discuss its concerns with legal counsel in a properly noticed public meeting. He also said that each council and staff member should receive training on the requirements of open meeting laws with counsel from the League of Arizona Cities and Towns. Lastly, Horne asked the council to submit to oversight by his office for 12 months and provide a schedule of meetings and copies of meeting notices, agendas and minutes. He asked that Quartzsite officials respond to that recommendation by Dec. 30.

The Quartzsite manager was not available for comment. Mayor Jose Lizarraga said he would have no comment now.

For more information about reprints & permissions, visit our FAQ's. To report corrections and clarifications, contact Standards Editor Brent Jones. For publication consideration in the newspaper, send comments to letters@usatoday.com. Include name, phone number, city and state for verification.

The Quartzsite Town Council violated Arizona’s Open Meeting Laws four times in connection to the removal of a local resident from a July meeting, Attorney General Tom Horne has ruled.
Horne sent a letter to the Quartzsite Town Attorney regarding the Council’s removal of Jennifer Jones, who was speaking during a call to the public in June. The controversial incident was caught on video and later viewed by thousands over the Internet.
The Council had reason to object when Jones turned her back to the Council and addressed the audience, but she should have been given a warning.
“Public bodies can eject members of the public for disruptive conduct, but they must first give a warning, which the council failed to do,” Horne’s press release stated.
A second violation occurred July 10 in which the Council convened an emergency meeting at the Town Hall to discuss disruptions during previous meetings. The Council locked the doors to the meeting room and did not allow any member of the public to attend its meeting. Horne ruled that excluding the public from this meeting violated the Open Meeting Law.
A third violation involves the Council not fully complying with the posting requirements for emergency meetings. As of Dec. 9, the minutes of the emergency meeting were not posted on the Town website. The final violation involves the failure to comply with posting requirements for Notices and Minutes.
The Council did not post minutes for the July 10 emergency meeting. In addition, the Council failed to post minutes for a number of its meetings labeled as “work sessions.”
Horne is recommending the Council discuss these issues during a properly posted public meeting, and that each Council member attend training on Open Meeting Laws. The Council will also be subject to oversight by the Attorney General’s Office for a year.
To read Horne’s letter in its entirety, click here.
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Posted: Dec 13, 2011 1:03 PM Updated: Dec 13, 2011 1:13 PM

By Phil Benson - email

Arizona Attorney General Tom Horne Arizona Attorney General Tom Horne

PHOENIX (KPHO) -

The Quartzsite Town Council violated Arizona's Open Meeting Laws in connection with the conduct of meetings and dealings with a member of the public, Arizona Attorney General Tom Horne said Tuesday.

Horne cited four alleged violations in a letter to the Quartzsite town attorney:

* June 28: While addressing the council, Quartzsite resident Jennifer Jones was removed from the meeting by a vote of the council, Horne said. She had turned her back on the council and was addressing the audience, which the council reasonably could object to, he said. Public bodies can eject members of the public for disruptive conduct, but they must first give a warning, which the council failed to do, Horne said.

* July 10: The Council convened an emergency meeting at the Town Hall to discuss disruptions during previous meetings. The Council locked the doors to the meeting room and did not allow any member of the public to attend its meeting, Horne said. Excluding the public from the meeting violated the Open Meeting Law, Horne said.

* Dec. 9: In a related violation, the Attorney General said the Council did not fully comply with the posting requirements for emergency meetings. Horne said as of Dec. 9, the minutes of the emergency meeting were not posted on the town's website.

* The final violation involved the failure to comply with posting requirements for notices and minutes, Horne said. The council did not post minutes for the July 10 emergency meeting, according to Horne. The council also failed to post minutes for a number of its meetings labeled as "work sessions," Horne said.

Horne said he was making several recommendations. He wanted the council to discuss his concerns with its legal counsel in open session during a properly noticed public meeting.

He recommended each member of the council and staff to take part in a training session with counsel from the League of Arizona Cities and Towns, regarding the requirements of the Open Meeting Laws.

And he wanted the council to be subject to oversight by the Attorney General's Office for 12 months.

The Arizona Attorney General’s Office has completed its investigation as to whether the Quartzsite Town Council violated the state’s Open Meeting Laws. In a letter to Town Attorney Martin Brannan dated Dec. 9, Assistant Attorney General Christopher Munns stated his office found alleged violations relating the council’s June 28 regular meeting and the July 10 emergency meeting.

In a press release, the AG’s office stated these alleged violations include improperly removing a member of the public from the June 28 council meeting, locking the doors and keeping the public out of the July 10 meeting, and failure to meet posting requirements.

The letter stated the AG’s office had not been able to substantiate allegations council members, including a quorum, had been discussing town business at a local restaurant or in the town manager’s office prior to council meetings. They were concerned, however, by reports that meetings between members were taking place.

The provisions of Arizona’s Open Meeting Law are found in ARS 38-431.

The alleged violation at the June 28 meeting involved the council’s vote to remove Jennifer Jones from the meeting as she was speaking in Call to the Public. The letter stated elected bodies can create rules of decorum, and they can remove persons who are being disruptive. However, case law says the individuals must first be warned they are violating the rules.

Jones allegedly violated the rules by speaking directly to a council member, removing the microphone from its stand on the podium, and addressing the audience rather than the council.

Following a motion from Councilman Joe Winslow, the council voted to have Jones removed, over the objections of Mayor Ed Foster. The letter noted that Jones was not warned she was violating the rules, nor was she given the opportunity to correct her behavior.

“Although her behavior may have offended or irritated members of the council, the council should not have removed Ms. Jones without first giving her a warning and an opportunity to cease her disruptive behavior,” the letter stated.

The primary alleged violation at the July 10 emergency session was the public was excluded from the meeting. The meeting was called and an emergency declared because of perceived threats to council members. This came after a video of the June incident went “viral” on the Internet, and many comments critical of the Quartzsite town government were posted on websites and blogs.

“The proper response to perceived threats against a public body is not to exclude the public from attending a meeting,” the letter stated. “Rather, the public body should heighten security through meeting at a more secure location, ensuring the presence of security guards or police officers, or using metal detector wands for those entering the meeting.”

By state law, the public can only be excluded from properly called executive sessions. These can only be called to discuss personnel matters or for public bodies to receive legal advice from their attorneys. No formal actions can be made is such sessions.

Other alleged violations from the July 10 meeting include failure to comply with posting requirements for an emergency meeting, and failure to comply with posting requirements for notices and meetings.

The letter stated the AG’s office could not substantiate claims council members were discussing town business at a local restaurant, or that they were meeting in the town manager’s office prior to council meetings. They said they found no corroborating evidence to substantiate these claims.

The letter voiced concern meetings between council members were taking place. They noted it was possible these could lead to Open Meeting Law violations, as well as undermining public confidence in the elected body.

As for remedies, the letter recommended the council discuss the letter in an open meeting, that council members receive training from the League of Arizona Towns and Cities on the Open Meeting Law in an open meeting, and that the council be subject to oversight from the AG’s office for a period of one year.

The town will have until Dec. 30 to let Munns know if they agree to the recommendations in the letter.

This was one of several investigations by state offices that have been or are being conducted into matters involving Quartzsite.

In July, Attorney General Tom Horne took the unusual step of issuing a statement prior to the completion of an investigation. He state there was reason to believe the Quartzsite council violated the Open Meeting Law by excluding the public from the July 10 meeting.

The state Ombudsman-Citizen Aide’s Office told the Town they acted improperly on two public records requests. They said the town improperly denied a request from then-Mayor Ed Foster for payroll records. They found town did not promptly and properly fulfill a request from Jones for copies of the resumes and job applications from several top officials, including Town Manager Alex Taft, Police Chief Jeff Gilbert and Assistant Town Manager Al Johnson.

An investigation by the Arizona Department of Public Safety into whether Gilbert improperly used federal crime databases is ongoing.

Friday, December 9, 2011

Quartzsite, AZ - The initial appearance for a felony charge of “tampering with a witness" was vacated against newspaper publisher Jennifer Jones this week. This is the fifth arrest for Jones since last November, which began right after she announced her intention to run for town council and start an independent newspaper. Despite repeatedly alleging what Jones has called “frivolous” charges, the town has refused to see any of them through. “Clearly, they are threatened by me and they’re using these false allegations to try and destroy my reputation.” Stated Jones. “This has been a pattern and practice that has escalated over the last three and a half years since the police searched my home without a warrant and I dared to file complaints about it.” She said. Currently, Jones is facing only citations for “vending without a permit.” This is the same charge dismissed with prejudice last month by Magistrate Judge John Henry.

Police Chief Jeff Gilbert and Sergeant Xavier Frausto were parked blocking the fire lane outside the Quartzsite Post Office on Friday, December 2nd. When Jennifer Jones walked out the door, Gilbert asked, “Can I talk to you Mrs. Jones?” When Jones replied, “No. Anything you have to say, you can say in front of the people inside.” Gilbert and Frausto followed her into the crowed Post Office lobby and placed her under arrest.

Despite Jones repeatedly asking what she was under arrest for, the police refused to provide an explanation. Finally, Gilbert said he would explain it to her later and Jones suggested, “you should explain it to the people that are paying you to do this”.

While awaiting transport to the La Paz County Jail, Gilbert disclosed the charge but refused to provide any details. When Jones asked who signed the warrant Gilbert replied, “I don’t need a warrant. I just have to reasonably believe you committed a crime.” Jones responded that she reasonably believed he had been sampling the confiscated drugs in the evidence locker if he thought there was any probable cause for her arrest in a federal building.

According to Jones, Gilbert also referenced the blowback to the June 28th incident where he and Officers Fabiola Garcia and Rick Patterson forcibly removed her from a town council meeting and the video went viral on Youtube. “I haven’t received an email about you in, well, months. No one cares about you any more Mrs. Jones.” claimed Gilbert. Jennifer Jones was injured in that incident, which has been under investigation by Detective Ronald Baroldy of the Arizona Department of Public Safety Major Crimes Division, but no final report has been made public.

DPS Major Crimes is also investigating allegations against Chief Gilbert and Sergeant Frausto made by eighty percent of their own department last May. Some of those charges relate specifically to targeting Jones and her husband, as well as other known associates of recalled Mayor Ed Foster. Despite the fact that DPS Detective Pete White has not cleared them of the serious allegations, Gilbert and Frausto remain on duty. “The town’s Procedures and Policy Manual requires them to be placed on administrative leave, but the council refuses to act. In the last year, I knocked on the door of every state agency and asked for help to no avail. It’s evident how deep the incompetence and corruption runs.” said Foster.

Seven of the nine officers and the police administrator who ”blew the whistle” on department misconduct last spring were fired by the town over the summer and are represented by the Phoenix Law Firm of Schnider and Onofry. The alleged victim in Jones’ most recent arrest is Denise Ann Florian, a woman who was placed on the town’s personnel board on September 22nd to hear the appeals of terminated town employees, including the police officers. Florian has lived in Quartzsite for less than a year, and has colorful history of civil and criminal cases in Orange County, California

Quartzsite elected and appointed officials made headlines over the summer for refusing to show employee payroll and other open records requests, as well as numerous alleged open meeting violations including a secret meeting where the council declared a “state of emergency” and locked the door on the mayor and citizens. That Youtube video resulted in a press conference by Attorney General Tom Horne, but the AG’s office has not taken any further action.

Neither has Arizona Governor Jan Brewer. Her office claims to lack the ability to get involved, yet Brewer successfully lobbied the State Senate a month ago, for the removal of the Independent Redistricting committee Chairwoman Colleen Mathis, after allegations of open meeting violations. Foster says, “Brewer is fiddling while Quartzsite burns. I’m worried someone is going to get seriously injured here before this is over.”

A year after her first arrest, Jennifer Jones newspaper, The Desert Freedom Press has the largest circulation in the La Paz County area and she has pulled nomination papers to run again for town council in March. According to Jones, this time, she intends to run on a campaign platform of disbanding the town’s dysfunctional police force and negotiating with the county sheriff to expand their dedicated coverage of the embattled town. “ I used to believe that there was hope for saving it, but it has become painfully clear that the legal liability for the police department no longer justifies spending over one third of our town budget. We need to start over, and while the position of police chief is an entrenched bureaucrat, the sheriff is accountable directly to the voters and has a Constitutional mandate to do the job.” Said Jones.